NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HERBER NOLASCO-GOMEZ, 

Petitioner, 

 v. 

MERRICK B. GARLAND, Attorney 

General, 

Respondent.

No. 16-70237

Agency No. A200-032-686

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted April 11, 2022**

Pasadena, California

Before: CALLAHAN and VANDYKE, Circuit Judges, and EZRA,

*** District 

Judge.

Herber Nolasco-Gomez, a native and citizen of El Salvador, petitions for 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

*** The Honorable David Alan Ezra, United States Senior District Judge 

for the District of Hawaii, sitting by permanent designation of Chief Justice 

Roberts on the United States District Court for the Western District of Texas.

FILED

APR 13 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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review of the Board of Immigration Appeals’ (BIA) denial of asylum, withholding 

of removal, and relief under the Convention Against Torture (CAT). We possess

jurisdiction under 8 U.S.C. § 1252(a), and we deny Nolasco-Gomez’s petition.

1. In 2011, the BIA remanded Nolasco-Gomez’s request for withholding

of removal to the IJ but affirmed the IJ’s denial of asylum because his application 

was not filed within a year of entering the United States. See 8 C.F.R. § 

1208(4)(a). When Nolasco-Gomez appealed the IJ’s denial of withholding on 

remand to the BIA, he did not again raise his claim for asylum. Nonetheless, we 

have jurisdiction to consider his asylum claim because the BIA has ruled on it. See 

Go v. Holder, 640 F.3d 1047 (9th Cir. 2011). However, Nolasco-Gomez’s brief 

before us does not address the timeliness of his application for asylum. 

Accordingly, he has waived his challenge to the denial of asylum. Fed. R. App. P. 

28(a)(8)(A); Martinez-Serrano v. I.N.S., 94 F.3d 1256, 1259 (9th Cir. 1996) 

(“Issues raised in a brief that are not supported by argument are deemed 

abandoned.”); Corro-Barragan v. Holder, 718 F.3d 1174, 1177 n.5 (9th Cir. 2013) 

(same).

2. We review the agency’s factual findings for substantial evidence. 

Arrey v. Barr, 916 F.3d 1149, 1157 (9th Cir. 2019). Here, substantial evidence 

supports the BIA’s determinations that: (1) Nolasco-Gomez was not credible 

because of multiple inconsistencies in his testimony and his mother’s testimony; 
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and (2) he had not shown past persecution due to a protected ground because he 

failed to establish a nexus between his alleged persecution and his membership in 

his father’s family. 

The IJ’s adverse credibility determination was supported by inconsistencies 

as to the manner of Nolasco-Gomez’s father’s death and factual inconsistencies in 

Nolasco-Gomez’s and his mother’s testimonies. For instance, Nolasco-Gomez’s 

initial declaration alleged a single incident of men following him home and 

throwing rocks at his house. But he testified about three incidents, while his 

mother testified there was only one incident. These inconsistencies are significant 

because they form the basis of Nolasco-Gomez’s claim of past persecution. The 

record does not compel a finding of credibility. 

3. Even if Nolasco-Gomez were determined to be credible, to be eligible

for withholding of removal, he must demonstrate a presumption of fear of future 

persecution based on past persecution, or independently show that it is more likely 

than not that future persecution would occur. 8 C.F.R. § 1208.16(b)(1); Tamang v. 

Holder, 598 F.3d 1083, 1091 (9th Cir. 2010). The persecution must be on account 

of race, religion, nationality, membership in a particular social group, or political 

opinion. 8 C.F.R. § 1208.16(b)(1). 

Nolasco-Gomez does not claim that he has ever been personally threatened 

by Roque Hernandez, who Nolasco-Gomez claims killed his father. He offers no 
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corroborating evidence that the men in masks who allegedly followed him home 

and threw rocks at his house did so on behalf of Hernandez or because NolascoGomez was his father’s son. Indeed, there is no evidence that Nolasco-Gomez is 

likely to suffer physical injury on account of membership in his father’s family. 

Nolasco-Gomez has not shown that he is entitled to withholding of removal.

4. Finally, Nolasco-Gomez may not challenge the denial of CAT relief. 

On remand, the IJ denied Nolasco-Gomez’s request for CAT relief. But in his 

appeal to the BIA, he failed to raise this issue. Accordingly, he has waived his 

right to raise it before the Ninth Circuit. Barron v. Ashcroft, 358 F.3d 674, 678

(9th Cir. 2004).

The petition for review is DENIED.